Picking the right power of attorney/substitute decision maker
Dr. L. Shoots
February, 2024
In Ontario, there are two different types of powers of attorney: power of attorney (POA) for personal care, and Continuing POA for property. The term ‘power of attorney’ is confusing, as it sounds very much like a lawyer in power, but what it really means is someone you are appointing to make certain decisions for you if you are incapable of making decisions for yourself. Another commonly used term is a substitute decision maker (SDM).
There are two very key steps to POAs: 1. Naming someone to be your POA 2. Actually communicating with them in advance, what your wishes are in certain scenarios. Croak will help you with both.
In Ontario, a POA for personal care is someone who will make decisions about your health when you are not capable too, per the Substitute Decision Makers Act, 1992. They will make decisions about your health care, nutrition, where you live, clothing etc. Again, remember, this is only if you cannot make your wishes for yourself. Naming a POA of personal care does not automatically give all of the power to this individual to make decisions for you, they only do so when you are deemed incapable by a professional, to make your decisions.
This is why your POA personal care (herein we’ll just call it your POA) it’s an extremely important role, but also one that often creates a lot of stress for families when individuals have not properly communicated with their POA what their wishes are. Your POA must consider your wishes when they are making decisions for you, and this is why it’s so important to outline your detailed wishes in advance (often termed ‘advanced care directives’ or ‘advanced directives’). Saying ‘don’t make me a vegetable’ is definitely not enough (read our blog post about that here).
It’s also important to highlight that a healthcare provider is unable to provide treatment if they are aware it goes against your wishes. On a similar note, a POA cannot demand treatment—it is up to the healthcare provider to decide what treatments are best for your loved one, and the POA can simply agree to decline the treatments offered.
POAs also do not have to follow a wish that is impossible to honor. For example, if you wish to remain in your home and not be cared for in a healthcare institution, but your health requires it/other alternatives are not feasible, your POA may decide what the best place is for your needs.
What happens if I become incapable and I have not legally named someone as my POA for personal care?
Under the Ontario Health Care Consent Act (1996), you do not have to explicitly name someone as your POA. However, there is a legally determined hierarchy for who will automatically become your POA should you not officially name someone. For most people who do not have a legally appointed POA by court or by a document you have filled out (using our platform, a lawyer etc.), then their spouse/partner is automatically the POA. If you do not have a spouse, then it becomes your parents or children. See the image below for full details.
It is also important to note that in an emergency, a physician can act as your POA.
Are there certain people I cannot choose to be my POA for personal care?
Do not appoint anyone that provides you with healthcare, or who you pay for services including your landlord (you pay rent too), your social worker, your counselor or teacher, your home cleaner, cook, or contractor. The only exception is if that person also happens to be your spouse/partner/relative. Also note that your POA must be over the age of 16.
Can I have multiple POAs of personal care?
You are allowed to name multiple people to be your POA, though we at Croak.ca do not encourage it. As our entire platform is about making lives easier for family, our founder's experience (a physician) is that when there are multiple people who are needed to make decisions, there is more room for conflict and indecision between them.
Having multiple different people serve as your POA jointly can often create friction when opinions on how to handle a situation vary. Especially if the POAs are not good at communicating with one another, or if one does not want to make decisions without the other one being present. Sometimes this can lead to substantial delays, which can be a form of decision-making themselves in an emergency (sometimes making no decision, like choosing not to go for a substantial surgery until hearing from another POA, can cause an illness to progress to the point that now even harder decisions need to be made).
The potential advantage of having multiple POAs is that if they are good communicators, they don’t have to feel alone in their decision-making.
If you are interested in having multiple POAs, contact us directly and we will support you.
Important considerations for choosing a POA:
Here’s a list of things to consider when choosing a POA:
How well do they know you?
Do they have strong communication skills?
Are they willing to ask questions, including difficult ones?
Are they someone who knows what your current quality of life is like (they see you often, and understand your day to day abilities/limits?
Do they live in the same community as you, and if they don’t, are they typically readily accessible in cases of emergency?
Choosing a POA that doesn’t live near you (out of driving range/province/country) can pose challenges. One of the most obvious is that if you are being cared for by someone who does live near you, typically that person tends to have the best idea for your current health needs. This is a common source of friction between loved ones when a caregiver who has a thorough understanding of your day-to-day life is not named as the POA, but instead another loved one who lives farther away and doesn’t appreciate the nuances of your health. If you choose a POA that lives farther away, and especially if you choose a POA who is not your primary loved one taking care of you, you should ensure those individuals communicate well together and understand your state of health well.
Lastly, it’s really important to talk with whoever you choose as your POA! Make sure they are comfortable with the role and understand your wishes. We also highly encourage you to share your wishes with all of your loved ones, to ease the role of your POA so everyone knows why they are making the decisions they are making. Losing a loved one is really hard on families, and if we can remove any of the preventable stressors beforehand, that’s what Croak is all about.
Hop to it!
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